Wednesday, December 30, 2009

A Northern Kentucky state senator has reintroduced a bill for the upcoming legislative session to prohibit the broadcast of 911 recordings.

Sen. John Schickel, R-Union, has argued that the bill would protect the identity of people making 911 calls, although identifying information would still be available in transcripts.

The Society of Professional Journalists published a letter Tuesday urging a similar bill in Ohio be withdrawn, saying it would diminish the news media's ability to report on breaking events.

"If audio recordings are banned from the public airwaves then it will be virtually impossible for citizens to hear how calls are being handled and effectively hold emergency response centers accountable," the SPJ letter said. "Ohio courts traditionally have ruled in favor of disclosure of 911 tapes for all to hear for good reason - it ensures the public trust in its institutions regarding the safety and welfare of citizens."

When Schickel introduced the bill in the 2009 session, he said he wanted to prevent news outlets from attracting viewers by broadcasting the frantic, sometimes final pleas of victims. The bill passed the Senate in the 2009 session but failed to pass the House.

Last year, the Kentucky bill was opposed by the Kentucky Press Association and the Kentucky Broadcasters Association, even though both organizations noted that such calls are rarely actually broadcast. In Kentucky, 911 calls are currently public records, available to reporters and ordinary citizens alike.

The bill, SB 308, would "restrict the availability of recordings of 911 communications to releases by court order," but would allow written transcripts.

Tuesday, December 22, 2009

Kentucky courts recently joined the "e-Transparency initiative" launched by the executive branch of state government this year. Judicial Branch expenditures and contracts are now posted at www.opendoor.ky.gov. (Click on Start Your Search at OpenDoor, then on Expenditure Search and then select Judicial Branch under Expenditure Search.)

There is a searchable database of line-item expenditures by the courts going back to January 2007. Salary information will be added in coming months, the office of Chief Justice John D. Minton Jr. said in a news release. “I’m pleased to join the Executive Branch in providing comprehensive financial information on the OpenDoor website,” Minton said. “This is part of our ongoing effort to increase the court system’s accountability to Kentucky taxpayers.”

The Judicial Branch is comprised of four levels of state courts – the Supreme Court, the Court of Appeals, Circuit Court and District Court. The Administrative Office of the Courts supports the activities of approximately 3,800 Kentucky Court of Justice employees, including the elected justices, judges and circuit court clerks.

In the latest move toward opening of juvenile courts in Kentucky, a Louisville judge has affirmed a lower court's ruling that a newspaper could "inspect the homicide case of a 12-year-old boy charged a dozen years later with murdering a fellow ex-soldier in Colorado," reports The Courier-Journal, which sought the rulings. The paper's lawyer, Jon Fleischaker, said the case could help persuade other judges to open certain juvenile cases.

The case "captured national media attention as an example of the horrific crimes committed by some Iraq war veterans," Andrew Wolfson writes, adding that the newspaper wants to see if the juvenile case "was properly handled" and whether the perpetrator, Kenneth Eastridge, "should have been prohibited from enlisting later in the Army."

The judges said "the usual protection of the confidentiality of minors in criminal cases was outweighed by the fact that Eastridge was now an adult, the severity of the current murder charge and the public interest in learning from his case," Wolfson reports. "Assistant Public Defender J. David Niehaus said he will ask the state Court of Appeals to hear the case." (Read more)

Monday, December 21, 2009

Kentucky State Police should have released information, including 911 tapes, on the death of William Sparkman in the Daniel Boone National Forest when requested by a reporter for The Associated Press, the state's attorney general has ruled.

While the state Open Records Act allows police to withhold information in cases under investigation, they must specify exactly what harm would be done by releasing it, the ruling said. Since they did not do so in this case, they violated the law, it said.

In another ruiling, the attorney general said the state's Unemployment Insurance Task Force violated the Kentucky Open Meetings Act. The office ruled in favor of The Courier-Journal, which had complained that the task force excluded the press and public when it split into several small groups to consider changes to the state's unemployment insurance program.

Full texts of these and other decisions issued Monday can be found via the Links of Interest at the bottom of ther KOG Blog.

Saturday, December 19, 2009

Kentucky, which leads the nation in deaths of abused and neglected children, should open its records in such cases and those involving severe injuries, the chairman of the state House Health and Welfare Committee and the head of Kentucky Youth Advocates said yesterday.

"State Rep. Tom Burch, D-Louisville, said Friday he will introduce legislation in the 2010 General Assembly that would require state child-protection officials to release their records on children who died or were severely injured as a result of abuse or neglect," reports the Lexington Herald-Leader. Burch told the newspaper that it's possible state employees "didn't do their job right or they had heavy caseloads and didn't have time to look at the case sufficiently."

House Speaker Greg Stumbo told the paper, ""The House is more than willing to look for ways to make life safer for our youngest citizens, and if Rep. Burch believes this is an effective approach to take, I expect the chamber will be supportive of his efforts." Stumbo and Burch are Democrats; the Senate is controlled by Republicans, and Senate President David Williams said he would have to see the legislation before commenting.

KYA Executive Director Terry Brooks, said his group would support the bill and a separate measure to open at least some proceedings in Family Court. "The current undue emphasis on confidentiality only hides issues in the child-welfare system," he told the Herald-Leader. "Broader public exposure is a beginning step to fixing many of the issues that afflict child protection. It is a tough proposition but the right balance can be found between privacy rights, system accountability and disclosure for the sake of system improvements." (Read more)

Thursday, December 17, 2009

Kentucky Chief Justice John Minton Jr. would support another effort by the legislature to open family court proceedings to the public, according to a statement from his office to Kentucky Citizens for Open Government.

Reacting to The Courier-Journal's reporting on Family Court proceedings in Jefferson County, Minton's statement said he supported Judge Joan Byer's decision to allow access to a Courier-Journal reporter with the permission of the parties and the condition that no one be identified. Under court rules, Family Court proceedings are normally closed to the public, because they often involve juveniles, but judges have discretion to open them.

“We have a number of judges who work daily in the system who have openly expressed their support for allowing the public to see what is going on in certain types of juvenile proceedings," Minton said. "These judges are attempting to follow model programs that have been successful across the country and to bring best practices to the courts of Kentucky. I support the work of these judges and encourage their efforts to provide greater accessibility."

Minton noted that the General Assembly declined last year to pass a bill setting up a pilot project to open some Family Court proceedings. "I would support similar legislation if introduced again,” he said.

UPDATE, Dec. 19: Yetter picked up on Minton's statement to KCOG and the KOG Blog and wrote a front-page story quoting him and legislators on the issue: "Rep. Susan Westrom, D-Lexington, a co-sponsor of the 2008 bill, said she’s willing to try again given the extent of problems that appear to beset the state’s child-protection system. Opening the courts might be a step toward shedding some light on the state’s overall system of protecting children from neglect and abuse, she said." Yetter notes, "Half the 50 states — including Indiana, Tennessee and Ohio — permit some access to juvenile and family courts, according to a 2008 joint report by the Children’s Advocacy Institute at the University of San Diego Law School and First Star, a Washington child advocacy group."

Tuesday, December 15, 2009

The Kentucky State Police violated the state open-records law in denying the Kentucky New Era's request for an initial report on the September death of a Mayfield woman, the state attorney general's office has ruled in an appeal filed by the Hopkinsville newspaper.

The police denied News Editor Julia Hunter's request on grounds that the investigation was still active, and KSP lawyer told the attorney general's office that the police do not "create initial offense reports or incident reports," an assertion that appears in boldface type in the decision, perhaps because it was so surprising, or unbelieveable.

Attorney General Jack Conway said the first page of the KSP's standard report form is the functional equivalent of an "initial offense report," which is supposed to be public. "As a general policy matter, this office recognizes that the public has the right to know when crimes are being committed in their community and to obtain information, through the Open Records Act, which would establish whether or not law enforcement agencies are actively investigating those crimes and pursuing wrongdoers," the ruling said, noting that there is "no other initiating document by which the public can be informed of the existence of this investigation."

The decision said "KSP has not demonstrated with specificity the harm that would result from disclosure of any information" in the report, so it should redact any information exempt from mandatory disclosure, then release the report. Hunter noted in her appeal that the police issued a news release that gave basic facts about the incident, so "It seems improbable the release of the report would jeopardize an investigation."

The full text of this and other attorney general rulings issued Tuesday can be found via Links of Interest at the bottom of the KOG Blog.

The Jefferson County Board of Education violated the Kentucky Open Meetings Act when it decided to conduct Superintendent Sheldon Berman's annual evaluation behind closed doors, Jefferson Circuit Court Judge Irv Maze ruled Monday. "While it may have been more convenient for the Board and Superintendent to have this discussion held in private," the reasons for doing so given by the board "do not justify closing the meeting to the public."

The Courier-Journal reported Tuesday that the board had decided not to appeal the ruling. Maze cited a 2008 ruling in the case, by Attorney General Jack Conway, that such evaluations must be public unless they might lead to discipline or dismissal. The board tried to make such a justificiation, but only after it had already decided to close the meeting. Ruling the action a "willful" violation of the law, the judge ordered the the board to pay attorney's fees to the newspaper, which had to pay lawyers to deal with the board's appeal of Conway's ruling, plus a $100 penalty.

"This Court is mindful that it is often difficult to discuss matters such as these in public," Maze wrote, but exceptions to the open-meetings law "should be obvious and not manufactured in order to work around the law." While not controlling outside Jefferson County, Maze's decision upholds an attorney general's decision that does have statewide import, so it's a good tool for reporters and editors anywhere in Kentucky to use in arguments against closing such meetings. To read the decision, click here. To download it as a Word document, also from the Web site of the Institute for Rural Journalism and Community Issues, click here.

The Courier-Journal recently persuaded a Jefferson County Family Court judge to ease Kentucky's strict confidentiality rules long enough to allow reporter Deborah Yetter to research and write a rare report on, and photographer Matt Stone to take pictures of, the court's operations.

The report, the third part of a series on child abuse in the state, was published Tuesday. The story took a close look at several cases involving abused and abandoned children. Judge Joan Byer allowed access "with permission of the parties in the courtroom, as long as children and families weren't identified," Yetter wrote. "Byer said she exercised her discretion to do that because she believes, in most cases, the courts should be open and the public needs to understand what's going on with child welfare." Byer said the system is overburdened and caseworkers are under intense pressure to keep cases closed. (Photo by Matt Stone)

The report included several sidebars, one of which noted that the confidentiality rules usually followed in family court cases exceeded the requirements set by state law, and the practice of some other states. It also quoted childrens' advocates and others as saying excessive secrecy hides faults in the system. The main story can be found here. The sidebar on confidentiality rules is here.

Monday, December 14, 2009

The Obama adminstration has made a major move toward realizing the president's promise, upon taking office, of more transparency in government. This has impact not just in Washington, but at the state and local offices of federal agencies.

All federal agencies have been ordered to carry out specific tasks and meet deadlines to increase public access to government information. The Office of Management and Budget last week issued an 11-page directive that also calls for agencies to use technology to distribute information, without waiting for people to file Freedom of Information Act requests.

The directive says that in order "to create an unprecendented and sustained level of openness and accountability in every agency, senior leaders should strive to incorporate the values of transparency, participation and collaboration into the ongoing work of their agency."

Among the tasks set out for federal agencies to meet in the first 45 days are:

-- Publish three "high-value" sets of data that have not previously been released in a downloadable format. (This could produce several local news stories, since federal agencies amass a huge amount of data.)

-- Designate a high-level official to be accountable for spending data made available to the public.

-- Form a new working group of senior officials to address transparency and accountablity issues.

The order also sets out other tasks to be accomplished in 60 or 120 days, including more open-goverment Web sites and plans for more transparency.

Friday, November 27, 2009

Individual billing data at a city utility is public if it doesn't reveal information about individual persons, the state attorney general's office has ruled.

The open records decision, which has the force of law but could be appealed, was requested by Clay Moore of Danville, who often requests records from public agencies in Boyle County but has never fild an appeal with the attorney general, for whcih there is no charge. He asked the city water and sewer department for bills of Centre College,Ephraim McDowell Regional Medical Center and Central Kentucky Ambulatory Surgery Center LLC.

The agency declined to release the records, citing a 1996 attorney general's decision. The latest decision overturned that one, saying it was “erroneously postulated on the notion that equal privacy interests could be attributed to aggregate information contained in a water bill for a customer with multiple unidentified users. . . . The interest of the public in ensuring that the department has, and fairly enforces, a uniform billing structure for all customers outweighs the nonexistent privacy interest implicated by the disclosure of the requested billing records.”

The 1996 decision was issued when Ben Chandler, now 6th District U.S. representative, was attorney general. The latest decision, which said the office has the right to change its mind, was written by Assistant Attorney General Amye Bensenhaver and approved by Attorney General Jack Conway. Moore "said Monday he is pleased with the ruling and wants to obtain the information to verify whether the large utility customers in question are being billed properly for their usage," reported David Brock of The Advocate-Messenger. (Read more)

Friday, November 13, 2009

One of the more routinely abused exceptions to the Kentucky Open Meetings Act is the one that allows closed sessions for "proposed or pending litigation." Today the state Court of Appeals upheld a lower-court ruling that kept the Lexington-Fayette Urban County Council from using that as an excuse to close a meeting "to discuss the city's response to a request before the state Public Service Commission by Kentucky American Water to build a $162 million treatment plant and pipeline," reports Andy Mead of the Lexington Herald-Leader.

The Herald-Leader objected to the closure, prompting a hearing in which Circuit Judge Sheila Isaac agreed with the newspaper and ordered the meeting to remain open. "The city later asked Isaac to reconsider, but the judge dismissed the case without ruling on the litigation exception' issue," Mead reports. "The city took the case to the appeals court, seeking a blanket ruling that the exception applies in all administrative proceedings."

The unanimous three-judge panel noted that the law requires its exceptions to be "strictly construed," and "said that the city failed to show that the same set of circumstances would occur again," Mead reports. (Read more)

Monday, November 9, 2009

The state attorney general’s office has ruled for the second time in a month that the Joint Board of Ethics for Bardstown, Fairfield and Nelson County has violated the Open Records Act.

The latest ruling came in a follow-up to last month’s citation of the board for denying records requested by local resident Marge Brumley about an ethics complaint she filed with the board. Brumley’s husband, Kevin, then asked to see records regarding the disposition of that ethics complaint, which the board refused, citing a local ordinance about cases that had not been finally determined.

The attorney general’s ruling said such ordinances “are of no legal effect to the extent they purport to override the unambiguous legislative policy supported by the Open Records Act.” The ruling also said that “final action” in such cases included a decision to take no action, which the board had done.

Attorney General Jack Conway also ruled in No. 09-ORD-192 that the record does not support the conclusion that the Murray-Calloway County Economic Development Corp. is a public agency because it has received only 20.57 percent of the funds it has expended in the Commonwealth in the current fiscal year from state or local authority funds. The decision "said that the EDC would have met that definition in fiscal year 2008 because it received a $1.6 million from the state," Hawkins Teague of the Murray Ledger and Times reports. The threshold for being a public agency is 25 percent. Lexington attorney Matthew Malone had requested records relating to EDC President Mark Manning's arrest on a DUI charge he received while in Frankfort. "Manning pleaded guilty to the charge and paid a fine," Teague reports. "He also issued a statement in August apologizing for his actions." (Read more)

Conway also said the McCracken County Jail violated the Open Records Act by failing to respond to an inmate’s request for records, and to the attorney general’s inquiry in the case. The inaction “cannot be allowed to continue,” and the jail remains in violation of the act, the ruling said. Here are other recent attorney general’s rulings on open-government issues, including two involving Butler County government:

09-ORD-191: Butler County Fiscal Court violated procedural requirements of the Open Records Act in responding to request for records relating to a magistrate's expense reimbursement, health, insurance, retirement, and timesheets. Although paucity of records produced raises questions about recordkeeping practices, such practices are beyond the scope of the AG's review under KRS 61.880(2).

09-ORD-187: Because the Butler County Sheriff's Department mailed a written response to a request within three business days, and the AG's office cannot resolve the related factual issue which prompted the appeal, the Attorney General has no basis upon which to find a violation of KRS 61.880(1). The Department violated KRS 61.872(4) in failing to provide requester with contact information for the official custodian of the agency in possession of certain records which are partially responsive.

09-OMD-188: The state Board of Chiropractic Examiners did not violate KRS 61.815 regarding required notice for a closed session when general notice of the nature of the business was given. Under 05-OMD-017, discussions of a quasi-judicial body at the charging stage are "deliberations" within the meaning of KRS 61.810(1)(j). One board member's whispering did not violate the Act unless it pertained to public business. KRS 61.840 does not guarantee that persons videotaping a public meeting may place cameras and microphones wherever they wish, or that the faces of all members be turned toward the public at all times when discussions are audible to those present.

Full texts of the decisions can be found through Links of Interest at the bottom of the KOG Blog.

Monday, October 26, 2009

The Kentucky Attorney General’s office has cited several county and city agencies for holding closed sessions or meetings or refusing requests for public records in a batch of rulings.

The office ruled:

• A planning committee formed by Shelby County Fiscal Court and the cities of Shelbyville and Simpsonville violated the Open Meetings Act by conducting non-public meetings without notice or minutes. The committee had been created by official action.

• The Joint Board of Ethics for the cities of Bardstown and Fairfield and Nelson County failed to observe requirements for conducting closed sessions and failed to respond to an open meetings complaint.

• Laurel County Fiscal Court was late in responding to a request for public records and wrong in refusing records of a closed session on jail personnel.

• The Webster County Board of Education violated the Open Meetings Act in failing to strictly comply with legal requirements before going into closed session.

• The city of Raceland subverted the intent of the Open Records Act by representing that charges would be made for staff time spent on an open records request.

• Madison County Fiscal Court violated the Open Meetings Act in relation to a September 22 meeting of a quorum of its members or a series of less than quorum meetings where the members attending collectively constituted a quorum and where public business was discussed.

• Kentucky Community and Technical College System improperly relied on KRS 61.878(1)(a) and (i) in denying a request for evaluations and performance improvement plans relating to public officials whose conduct had been questioned. The ruling also said KCTCS's inability to produce correspondence exchanged by the chancellor and the president for a two-month period suggests record management issue, and referred the matter to the Department for Libraries and Archives.

The attorney general’s office also ruled in favor of the Office of the Commonwealth’s Attorney for the 30th Judicial District, Campbell County Fiscal Court, Western Kentucky Correctional Complex, Kentucky State Reformatory, Pike County Circuit Court Clerk and Louisville Metro Department of Corrections in separate open records and open meetings complaints.

Full texts of the opinions can be found through the Links of Interest below.

Wednesday, October 14, 2009

Todd County has fired its restaurant inspector after an investigation by the Kentucky New Era showed he had failed to make required inspections.

The Hopkinsville daily reported that county Health Director Leslie Daniels fired environmentalist Malcolm Rust for "insufficient performance" and because of an interview he gave the newspaper in which he said there was "too much work for one person." The newspaper's investigation showed that Rust had often failed to make required inspections. Several restaurants had gone 11 months without an inspection, which the law requires every six months.

Rust had worked for the county for 10 years, the New Era story by Julia Hunter said.

Tuesday, October 13, 2009

The state attorney general's office has ruled the Lexington-Fayette Urban County Airport Board and county officials in Whitley, Crittenden and Nelson counties violated Kentucky's Open Records Act.

The airport board ruling came in a case brought by Lexington Herald-Leader reporter Jennifer Hewlettas part of the newspaper's investigation of the board. Hewlett was seeking an unredacted copy of a $10,000 check issued to former airport executive director Michael Gobb. The board had blacked out the name on the check, claiming it included "confidential health information."

"In weighing the competing public and private interests in the redacted information, the balance tips in favor of disclosure," the attorney general's decision said.

Gobb resigned as executive director after the newspaper's investigation, which revealed a pattern of questionable and high spending of public money.

In Whitley County, the 911 Dispatch Office denied a request for a copy of a 911 tape by Clarence Hurst. The dispatch office refused, saying 911 tapes are exempt from the Kentucky Open Records Act. "We find no support in the law for Whitley County's position," the attorney general's ruling said, adding "an ever-growing body" of law and legal opinions hold that 911 recordings are clearly public.

Crittenden County Fiscal Court "violated both procedural and substantive provisions of the Open Records Act" when it failed to respond properly to a request by Robert Moore for records relating to its solid waste management plan, the attorney general's opinion said.

In Nelson County, the judge/executive violated the law when he withheld "nonexempt portions of time sheets/time cards of a public employee, such as vacation leave and sick leave." The decision said, "In our view, the public's right to know is superior to the employees' privacy interest, real or imagined."

The Spencer County Board of Education violated Kentucky's Open Meetings Act by evaluating its superintendent in a closed-door session, Circuit Court Judge Charles Hickman has ruled.

The decision upheld an opinion by the attorney general's office that had been challenged by the school board.

The board conducted its mandatory annual evaluation of Superintendent Charles Adams in a closed session in June 2008. Board member Sandy Clevenger, who voted against the motion to adjourn to an executive session to discuss the evaluation, asked the attorney general whether the session complied with the state law. The opinion issued by the attorney general's office, which has the force of law unless overturned in circuit court, said the superintendent's personnel evaluation must be conducted in public. The school board challenged the ruling, supported by the state School Board Association, Board of Education, Department of Education and the Association of School Administrators.

"The exceptions to the Open Meetings Act are to be strictly construed in light of the decided preference that the public's business be performed before the eyes of the public," Judge Hickman wrote in his decision. "The Court finds no error in the AG's reasoning or conclusions."

Hickman turned down Clevenger's request for damages and attorney fees, saying the decision to hold a closed session was made in good faith and not in willful violation of the Open Meetings Act.

Monday, October 5, 2009

Kentucky’s Energy and Environment Cabinet cannot withhold the addresses of people receiving benefits under the Soil Erosion and Water Quality Cost-Share program, the state’s attorney general has ruled.

The ruling came in a case filed by Winchester Sun reporter Mike Wynn. Wynn had asked for the names and addresses of “all individuals, businesses, farming operations or similar entities in Clark County that have received funding in the last five years” from the state program.The cabinet, a part of the Division of Conservation, gave Wynn most of the information but refused to release the addresses, citing “privacy concerns.”

The ruling, while recognizing that such information can sometimes be withheld from public disclosure, said such a decision must be made on a case-by-case basis, and no agency can make an overall rule. In this case, the ruling said, the public’s right to know whether the benefits were being granted properly to properly qualified farmers outweighed the recipients’ right to privacy.

“As the Kentucky Supreme Court emphasized, the ‘unambiguous purpose of the Open Records Act is the disclosure of public records even though such disclosure may cause inconvenience or embarrassment to public officials or others’,” the ruling said.

The attorney general’s office also ruled on several other cases involving prisoner requests for information. A brief summary follows. For full details, see Links of Interest below.

1. 09-ORD-158 (Lyon County)The Kentucky State Penitentiary did not violate the Open Records Act in denying request because sufficient indicia exist to establish an "identity of purpose" between the requester and her inmate boyfriend. Because requester admittedly made request on his behalf after the penitentiary properly denied his request for the same records on the bases of KRS 197.025(1) and (2), providing her with access would undermine the purpose for which those provisions were enacted.

2. 09-ORD-159 (Franklin County)Private attorneys are not public agencies within the meaning of KRS 61.870(1) to whom the Open Records Act applies. Accordingly, actions of private attorney relative to responding to former client's request cannot be said to have violated the act.

3. 09-ORD-160 (Franklin County)The Department of Corrections was not required to permit on-site inspection of Probation and Parole records by an inmate confined in another location.

4. 09-ORD-163 (Lincoln County)The Lincoln County Jail is not statutorily required to honor a request for information as opposed to a request for existing public records. Although the jail would generally be required to make any nonexempt records that might contain the information being sought available for inspection, the requester is precluded from exercising this option by virtue of his confinement in a state correctional facility.

Tuesday, September 22, 2009

Saying it would not overrule prison officials in judging whether releasing some records would pose a security threat, the state attorney general's office has ruled in favor of the Lee Adjustment Center, a medium-security facility operated by Corrections Corp. of America under contract with the state Department of Corrections, in a dispute with an inmate. The decision, 09-ORD-152, was one of two issued this week by the office.

In the other, 09-ORD-151, it said the Russell County Board of Education properly withheld education records under federal and state education privacy laws where applicant had not provided legal certification that he was the father of the pupils, although the board's initial response procedurally violated the law by not identifying the custodian of certain records.

For full texts of the ruling, see Links of Interest at the bottom of the KOG Blog.

Questions about dealing with leaks of national-security information are holding up passage of a federal shield law for journalists, Walter Pincus reports for The Washington Post. The Justice Department wants to do away with the proposed "balancing test" in which judges would weigh the need to compel reporters to disclose sources against the public interest of revealing the information, in favor of a plan that would allow the department to subpoena reporters after convincing a judge that release of information could harm national security. For a Rural Blog item with a link to the story, go to http://irjci.blogspot.com/.

Friday, September 18, 2009

Fifteen journalists gathered in Morehead this morning for the third Sunshine Seminar sponsored by the Kentucky Press Association, the Scripps Howard First Amendment Center and the Institute for Rural Journalism and Community Issues. The first presentation was given by Ashley Pack, above, partner in the Dinsmore & Shohl law firm and KPA attorney-lobbyist. The next speaker was Amye Bensenhaver, the assistant attorney general who handles open-government issues. This afternoon, Carrie Stambaugh of The Independent in Ashland will tell open-government war stories and Al Cross of the Institute will discuss using campaign-finance records and what sort of public records newspapers should publish.

After Pack noted that the legislative policy of the Open Records Act calls for it to be "strictly construed, even though such examination may cause inconvenience or embarassment to public officials or others," Cross said community journalists may be reluctant to cause discomfort or inconvenience to local officials they know and like, they "must put those personal relationships aside" and play the public-service role that news ouutlets and journalists are supposed to play.

Monday, September 14, 2009

The Rural Blog reports today on an open-records victory by the Kentucky New Era in Hopkinsville that resulted in a weekend story questioning the performance of health departments in southwestern Kentucky. For the full blog item and a link to the story, go here.

The Kentucky attorney general's office released eight decisions today on open-records and open-meetings issues. Several dealt with requests for records that officials said did not exist; decisions reaffirmed past decisions saying records don't have to be created to fulfill a request. A brief summary of the six most significant decisions follows. Full text can be found via Links of Interest at the bottom of the KOG Blog.

09-ORD-143Although Trigg County Emergency Services mischaracterized 911 tape and dispatch log entries relating to triple homicide as Kentucky State Police records, because they were requested and utilized by KSP in its investigation of the crime, it ultimately met its statutory burden of proof in withholding the records on the basis of KRS 61.878(1)(h) at KSP's request.

09-ORD-144McCreary County sheriff violated the Open Records Act by failing to respond in writing to a request and failing without explanation to provide any records about wrecker service in response to some portions of the request.

09-ORD-145Neither the McCreary County judge-executive nor the McCreary County 911 Emergency Dispatch Center is required to produce nonexistent records about wrecker service or "prove a negative" in order to refute a claim that a certain records exist under the rule, nor must either agency create a record or compile a list in order to honor the subject requests; however, the response provided on behalf of the agencies violated the Act insofar as the judge-executive failed to affirmatively indicate whether additional responsive documents exist.

09-ORD-148Office of the Governor did not violate the Open Records Act when it did not possess records responsive to the request and provided what it did possess. Any funds received for copies in excess of 10 cents per page should have been returned.

09-ORD-150Pulaski County judge-executive is not expected to produce nonexistent reprimands nor must he "prove a negative" in order to refute a claim that such records exist in a specific personnel file; however, he violated KRS 61.880(1) in failing to affirmatively indicate whether any responsive complaints or commendations exist and in failing to cite the statutory exception relied upon as the basis for denying access to the requested job performance evaluation. The evaluation was properly withheld on the basis of KRS 61.878(1)(a), given the absence of any specific facts to justify disclosure.

Friday, September 11, 2009

The Fifth Circuit U.S. Court of Appeals has dismissed a case in which two city council members in Texas claimed the state's open-meetings law violated their right to free speech.

The full court, in a one-sentence ruling Thursday, said the case, Rangra vs. Brown, was moot because both Alpine City Council members who filed it four years ago have left the council and are no longer in a position to be injured by the law.

The two had been threatened with prosecution by the Texas attorney general for discussing city business by e-mail. They argued that the open-meetings law's requirement that they not discuss public business in private violated their constitutional right to free speech. A federal judge had ruled against them, but a three-member panel of the Court of Appeals overturned that ruling. The full 17-member appeals court agreed to hear the appeal, a rare event. The vote was 16-1; the dissenter criticized the others for taking the easy way out.

Proponents of government transparency had feared that if the appeals court ruled in favor of the two councilmen, open-meetings laws in other states might come under attack. Other experts, including Jon Fleischaker of Louisville, the First Amendment lawyer who largely drafted Kentucky's law, had said the three-judge panel's ruling was illogical and would never stand.

Thursday, September 10, 2009

A bill making any organization whose employees get state retirement benefits will be subject to the Kentucky Open Records Act has been prefiled by Rep. Arnold Simpson, D-Covington, and the Lexingon Herald-Leader reported Thursday it seems likely to pass when the legislature convenes next year.

The newspaper said the bill stems from its recent investigations into lavish spending at the Kentucky League of Cities and the Kentucky Association of Counties that led to the resignations of the leaders of both organizations. Although both organizations had surrendered records to the paper, they had claimed they were not subject to the records law. Each agency receives more than 25 percent of its budgets from public funds, the law's threshold for public inspection. Employees of both agencies receive state retirement benefits.

Simpson said at a recent public hearing that any group that received even "an iota" of public funding should release such records. The Herald-Leader said that leaders in both houses of the legislature had indicated they favored the bill. For the full story on Simpson's proposal, click here.

The opinion, which is legally binding unless appealed to circuit court, found the Regional Water Resource Agency in violation of the state's Open Records Act. The case involved a settlement with Ed Shelton of a lawsuit he filed after his sewer line collapsed. Owensboro Messenger-Inquirer reporter James Mayse had requested a copy of the agreement, but was denied by the agency, which cited a confidentiality clause in the settlement.

The attorney general's office cited a 1997 decision of the state Supreme Court and earlier attorney-general decisions in ruling that such a clause "does not create an inherent right to privacy superior to the significant public interest in disclosure of such a record."

The office also ruled against the Powell County School District, saying its refusal to supply records on a school activity fund was "procedurally deficient" and "substantively incorrect." The opinion said the district did not give reasons for failing to reply within the three days required by law to a request by Karen Rose, and that the district's claim that the records were "general correspondence" which could be destroyed in two years was wrong.

The decision said the records had to be kept for three years and an audit performed before they could be destroyed. However, it said the attorney general's office "cannot afford Ms. Rose the relief she seeks" because the records no longer exist. He did urge the school district to review open records authorities on "proper records management."

For a full text of the decisions, see Links of Interest at the bottom of the KOG Blog.

Tuesday, September 1, 2009

A Western Kentucky health department “subverted the intent” of the state Open Records Act in dealing with the Hopkinsville newspaper's requests for records, Attorney General Jack Conway said in a recent ruling.

The opinion, which is called an "open records decision" because it has the force of law, came after Kentucky New Era reporter Sarah Hogsed filed a request for restaurant inspection reports with the Pennyrile District Health Department. The New Era, which is already reporting on restaurant inspections in Christian County, plans to expand that coverage to adjoining Trigg and Todd counties.

The health department violated the open records law in several ways, the opinion said. First, it disputed Hogsed’s request to have the records within three days, saying it was only required to notify her within that period if it would comply. The attorney general's opinion said that the office was required to turn over the records in three days. The department demanded that she show up in person, present a photo ID and sign a standard form in the presence of a health department employee. That's not the law, either, the opinion said.

Hogsed would then get the records “in a reasonable period of time,” the reply said, “keep[ing] in mind two years of information is quiet [sic] time consuming.” She would also have to pay “all costs associated with the recovery and photocopying.” When the department finally got around to fulfilling the request, it appeared to get the job done in about one day, and charged the paper only 10 cents a copy, the general maximum established by previous attorneys general.

The opinion said the district's excuse for the delay – absence of staff – was not sufficient. The opinion added “in the interest of absolute clarity,” that those who ask for public records cannot be required to submit their requests on preprinted forms, or sign forms in the presence of an agency employee; that receipt of records no longer requires on-site inspection; that agencies may recover only their actual costs of reproducing public records, not including staff time, if the records are to be used for a noncommercial purpose, including use by a newspaper or periodical. The department had indicated that it considered the paper a commercial interest. "We suppose the notion that the news media act in the public interest had escaped the health department," the opinion said.

In another opinion, the attorney general's office ruled that the Shively Police Department’s failure to respond in a timely manner to a request for a police car video in a non-DUI case violated the Open Records Act. The full text of the decisions can be found through the Links of Interest at the bottom of the KOG Blog.

Friday, August 28, 2009

Despite pledges from Kentucky’s chief justice to shed more light on the process of building judicial facilities, the Lexington Herald-Leader says it’s “past time” for John Minton's promises to become reality.

“It's been almost a year since the Herald-Leader began chronicling the astounding building campaign of the Administrative Office of the Courts,” the newspaper said in an editorial over the weekend. “Cloaked in secrecy, riven with conflicts of interest, devoid of competitive bidding, the program has blasted through dozens of historic downtowns and almost a billion taxpayer dollars and is still going.”

The paper notes that Minton inherited the system from retired Chief Justice Joseph Lambert, and "has taken positive steps to protect both the integrity of the state's court system and tax dollars. ... But some of the changes Minton announced last October to ‘shore up public confidence’ have not yet materialized. It's past time for them to become reality.” Minton told the KOG Blog earlier this year that opening up the court construction program was one of his goals in a general review he has ordered of the degree of transparency in the Kentucky court system. He declined to comment on the Herald-Leader’s editorial.

“The most critical [change needed] is opening up AOC's work to public view, and scrutiny,” the paper wrote. “The records of the court system and the AOC have been closed since 1978 when the Supreme Court ruled that they weren't subject to the state open records law. This is a puzzlement. Our system depends upon the integrity of the courts. And nothing encourages integrity like open records.”

The paper said the lack of transparency leads to a “queasiness,” explaining: “First, we're talking about our courts. If they aren't honest and open, is there any hope for clean government in the two other branches? Second, there is a ton of money on the table here. Human nature and Kentucky's long, corrupt history tell us that public money combined with secret dealings is a combustible mixture that yields no good. ... The Supreme Court can undo what it did in 1978. Open the books. Open the process. Restore confidence.”

Thursday, August 13, 2009

The Sunshine Seminar, a refresher course on Kentucky open-records and open-meetings laws, is being offered at Morehead on Friday, Sept. 18 for journalists but is open to anyone interested in freedom-of-information issues.

The course is jointly sponsored and run by the Kentucky Press Association, the Institute for Rural Journalism and Community Issues and the Scripps Howard First Amendment Center (both part of the University of Kentucky School of Journalism and Telecommunications). It will cover such issues as how to use the laws, how to appeal to the attorney general, how to deal with judges and other court officials who try to close court proceedings, and using federal and state campaign-finance records to do election stories. Journalists will share success stories and discuss their experiences on the open-government front.

The seminar will be held at the downtown Morehead Convention Center from 9 a.m. to 4 p.m. and the $20 fee will include lunch.

Here’s the detailed schedule:

9:00 The importance of open records, open meetings and open courts and journalists’ role: Al Cross, Institute for Rural Journalism and Community Issues

9:15 History of state FOI laws; how to file open-records requests and appeals; how to keep meetings and courts open: Ashley Pack, Dinsmore & Shohl law firm, KPA attorney-lobbyist

10:30 Dealing with the Office of the Attorney General: Amye Bensenhaver, assistant attorney general and veteran decision writer

12:00 Lunch

12:45 Success stories: How we used freedom-of-information laws and reporting techniques to keep local government open to the sunshine: Carrie Stambaugh, The Independent, Ashland, and others

Wednesday, August 12, 2009

The following Open Records Decisions have been issued by the Office of the Attorney General:

09-ORD-120 (McCracken County): Reidland-Farley Fire Department did not violate open records law when it notified requester that it did not maintain records responsive to his request and advised him where those records were located. Questions relating to the truthfulness of this statement cannot be resolved in this appeal, nor can questions relating to unperfected appeal and questions that are hypothetical in nature.09-ORD-121 (Jefferson County): Decision adopting 00-ORD-116; grand jury records are permanently excluded from application of the Open Records Act by operation of KRS 61.878(1)(h).09-ORD-122 (Jefferson County): Decision adopting 98-ORD-6 and 04-ORD-021; records in the custody of circuit and district court clerks are properly characterized as court records, to which the Open Records Act does not apply, rather than public records within the meaning of KRS 61.870(2). In accordance with Ex Parte Farley, Ky., 570 S.W.2d 617 (1978), KRS 26A.200 and KRS 26A.220, the authorities upon which 98-ORD-6 and 04-ORD-021 are premised, this office finds that the Jefferson Circuit Court Clerk is not bound by, and therefore cannot be said to have violated the Open Records Act in failing to respond in writing upon receipt of the request(s) at issue as KRS 61.880(1) otherwise requires or in declining to "notify and/or respond for" specified judges and court officers.09-ORD-123 (Henderson County): Decision adopting 03-ORD-074 and holding that Henderson County Detention Center properly relied on KRS 197.025(2) in denying inmate request for records that did not contain a specific reference to him.

For a full text of the decisions, see Links of Interest at the bottom of the KOG Blog.

Tuesday, August 4, 2009

The Courier-Journal and the Lexington Herald-Leader are among recipients of awards announce yesterday by the Associated Press Managing Editors. The Herald-Leader won a Public Service Award for its recent series of reports on appointed government boards and local-government lobbying and service groups, while the Louisville paper won a First Amendment Award for its successful seven-year fight to reveal donors to the University of Louisville Foundation.

"The legal battle between the newspaper and the university began in 2001 after the paper requested the names of people who donated to the university's McConnell Center, which Senate Minority Leader Mitch McConnell, R-Ky., helped found," Emilu Udell writes for The C-J. "The foundation argued that it was not a public agency and so was not subject to the Kentucky Open Records Act." (Read more)

"The Herald-Leader won the Public Service Award given to newspapers with a circulation of 40,000 to 150,000," the paper and AP report. The paper's "It's Your Money" series "has examined spending at Blue Grass Airport, the Lexington Public Library, Kentucky League of Cities and Kentucky Association of Counties. The stories revealed that the groups had spent hundreds of thousands of dollars on questionable travel, meals and other expenses. After the initial airport stories appeared, the director of the airport resigned, as did several top members of his staff." (Read more)

Wednesday, July 29, 2009

The Jefferson County Board of Education can't hide from "unwanted or unpleasant public input" in evaluating Superintendent Sheldon Berman, Kentucky Attorney General Jack Conway ruled Tuesday.

The ruling said the board violated the state's open-meetings law when it made its annual evaluation of Berman in a closed session July 29, despite a 2008 attorney general's opinion that such evaluations must be made publicly unless they might lead to discipline or dismissal. Berman's evaluation was positive, though the board urged him to improve his interaction with the board, the community and parents.

The decision came in response to a complaint by The Courier-Journal, which disclosed the ruling in a story today. Board chair Debbie Wesslund told the Louisville newspaper that she disagreed with the opinion, and would consult with the board and lawyers in deciding whether to appeal. The 2008 decision, which involved a similar case in Spencer County, is under appeal in circuit court.

In a similar case, Conway issued a ruling Tuesday that the Kentucky Community & Technical College System violated the Open Records Act when it refused to give its evaluation of former president Dr. Paula Gastenwald to the Owensboro Messenger-Inquirer. Gastenwald was removed as president by the KCTCS board earlier this year. The attorney general said the public's interest in the case outweighed any privacy interst of Gastenwald. "The public is entitled to know why Dr. Gastenwald was removed," the opinion said.

Full texts of attorney general opinions in Open Meetings/Open Records cases can be found through Links of Interest at the bottom of the KOG Blog.

Documents showing county magistrates how money has been spent in their districts are public records, the attorney general's office said in an open-records decision last week. The decision pulls back the curtain on a common practice in county governments, divvying up funds for roads on the basis of political representation. Sometimes, actual needs of the districts take a back seat. It could also reveal a perhaps less common but arguably illegal practice, giving magistrates authority to spend money in their districts. They are supposed to be legislators on the Fiscal Court, with no executive power.

Richard Shivel of Russell County asked in writing to see "records related to monies spent by individual Magistrates in their respective districts, and any monies given or set aside" for individual districts or magistrates, including inspection of the folders that magistrates keep of such documents. The county attorney said the folders were personal and could be requested from the individual magistrates at a Fiscal Court meeting. When Shivel appealed to the attorney general, the county judge-executive said the folders are kept in his office, but contained only copies of other documents that could be obtained from the office. Citing a 1991 opinion, the decision said that was no excuse.

"Mr. Shivel should still have access to the folders in order to know which particular documents have been set aside as pertaining to each magistrate’s district," said the decision, written by Assistant Attorney General Jim Herrick and approved by Attorney General Jack Conway. It has the force of law but the county can appeal by filing suit in Russell Circuit Court.

Monday, July 27, 2009

A new attorney general's opinion contains some useful reminders about what the state Open Records Act does and what it doesn't do. The opinion, in the case of a Goshen man's demand for information from the North Oldham Fire Protection District, found partially in favor of the complainant, Peter Neidhardt, and partially in favor of the district, treading a careful route among state and federal laws and regulations and the definition of records, information and research.

Neidhardt had demanded minutes from unspecified meetings of the district board about volunteer firefighters' benefits and reimbursements. The decision said the district failed to provide "timely access," by not meeting the three-day deadline for a reply, but there was no statutory requirement for the district to provide information, create a record, perform research or compile a list.

The decision said the purpose of the Open Records Act "is not to provide information, but to provide access to public records." Therefore, "requests for information, as opposed to requests for specifically described public records, need not be honored." In the words of the office, what the public gets is what the public agency has and in the format in which the agency has it. "One desiring that lists be made, or that broad categories of information be provided, must expend their own time digging the information out unless it has already been compiled."

Further, the attorney general said, the district was not required to make a written reply to Neidhardt, and since he resided within the county, could require him to go to the district's office in working hours to look through the records himself.

For a complete text of the opinion, and several others issued recently, see Links of Interest at the bottom of the blog.

Tuesday, July 21, 2009

Kentuckians can feel confident their government is operating with a relatively high degree of transparency and openness, except for “serious problems” in the juvenile and family court system, which includes juvenile proceedings.

That's the news in the 2009 Kentucky Open Government Report, published by the Scripps Howard First Amendment Center and Institute for Rural Journalism and Community Issues at the University of Kentucky, which publish this blog.

The relatively good state of open-records law was illustrated last week by The Courier-Journal's publication of a story and online database about donations to the University of Louisville Foundation. The story was made possible by a state Supreme Court ruling that ended a long legal battle between the university and the newspaper.

On the other hand, family courts and the Cabinet for Health and Family Services combine to create the biggest black hole in Kentucky government, says Jon Fleischaker, a Louisville lawyer who wrote Kentucky’s open-government laws and remains the state’s foremost First Amendment attorney.

Thursday, July 16, 2009

Madison County officials who invoked the threat of terrorism and protection of a vendor’s proprietary information to avoid releasing records were wrong, and failed to prove their case on either issue, Kentucky Attorney General Jack Conway ruled this week.

Conway issued the decision, which has the force of law, in a case involving a request for public records on the construction of a 300-foot antenna tower on county land near a residential subdivision. The county fiscal court and emergency management office had released some of the records requested by Thomas Vergamini, but refused to release others, which they claimed included information marked “proprietary and confidential” by the unidentified vendor. The two offices also stated they would “not provide any records that have a reasonable likelihood of threatening public safety by exposing vulnerability in this emergency communication system: Whether it is in preventing, protecting against, mitigating, or responding to a terrorist incident or disaster.”

Conway ruled that the officials could not claim exemption from the Open Records Act with a simple statement, but had to show a “real threat” of harm to the vendor, and to the public. They failed to do so, Conway said in finding for Vergamnini. The officials now have to release the records or appeal to circuit court.

The opinion was one of several released recently by the attorney general’s office. Others included:

OAG 09-005: Former employees of the Justice and Public Safety Cabinet, including the Office of the State Medical Examiner and of the Kentucky State Police Laboratory, are not entitled under Kentucky law to hourly compensation when subpoenaed to testify in a case arising from their duties while employed by the Commonwealth.

09-ORD-098: Franklin County School District failed to establish that an open-records request was inadequate and placed an unreasonable burden on the district. As described, records identified in district's admittedly limited search were excluded from public inspection by KRS 61.878(1)(i), (j), (k), and (l), but it is incumbent on the district to conduct a broader search of its paper and electronic files to locate any remaining records.

09-ORD-099: Decision adopting 07-ORD-188 and 07-ORD-190 regarding the statutory obligations of a public agency upon receipt of a request for nonexistent records or those which the agency does not possess; a public agency is not required to produce nonexistent records, nor must a public agency “prove a negative” in order to refute a claim that certain records exist. In the absence of a prima facie showing that additional records exist in the possession of the Johnson County School District aside from those already provided, its disposition of the request is affirmed in accordance with Bowling v. Lexington-Fayette Urban County Government, Ky. 172 S.W.3d 333, 340-41 (2005), and prior decisions of this office.

09-ORD-101: Decision adopting 07-ORD-188 and holding that in the absence of a prima facie showing by requester that responsive records exist that have not been furnished, Transportation Cabinet properly disposed of request by providing requester with all such records in its custody and notifying him that no additional records exist. Attorney General's office is not the proper forum for dispute resolution relating to discrepancies in records produced for inspection.

For the full text of these opinions, see Links of Interest at the bottom of the KOG Blog.

Thursday, July 2, 2009

The Kentucky League of Cities has returned to its former policy of fulfilling open-records requests from the Lexington Herald-Leader, it announced today. It reserved the right to withhold records that might hurt the insurance business that has turned it from a relatively modest lobbying group to a financial institution.

“While we are withdrawing our opposition to certain requests, we will continue to protect our proprietary interests as we compete in the marketplace every day,” Mayfield Mayor Arthur Byrn, chair of the Kentucky League of Cities Insurance Services board, said in a press release from the league. Last week, the league said it would stop releasing records because it didn't consider itself to be a public agency. Under the state open-records law, entities that get 25 percent or more of the revenue they spend in Kentucky are public agencies.

The league indicated that last week's decision was a public-relations blunder. “Our intent to protect our insurance service programs has been greatly misunderstood to the detriment of the reputation of our organization,” KLC General Counsel Temple Juett said in the release. “Our intent has and always will be to protect the proprietary nature of our business – in particular our insurance services – which were founded in the late '80s when cities could not obtain insurance anywhere and for any price.”

After the Herald-Leader published stories last month about the salaries and expenses of top league executives, it asked the league for records of payments to law firms. That prompted the policy change that was reversed today. For the league's release, click here. For more information, see the item below.

Friday, June 26, 2009

When the Lexington Herald-Leader asked the Kentucky League of Cities for a lot of records a few months ago, the league complied. Now the organization, which has expanded its business activities beyond lobbying, says it will no longer voluntarily release records.

The league "is not a public agency and not subject to the Kentucky Open Records Act," Temple Juett, the League's attorney, said in a letter to the Herald-Leader yesterday. The newspaper reported, "In all the past responses to the Herald-Leader's open records requests, Juett had stated that the league's status as a public agency had never been determined, but that the league would comply voluntarily. Herald-Leader Editor Peter Baniak said the paper will pursue the records issue through the appropriate channels."

Typically, that means an appeal to the attorney general, whose decisions in open-records and open-meetings matters have the force of law, followed by a lawsuit from the side that loses at the attorney general's office. In 1993, the office "found that the Kentucky Association of Counties, similar in its structure and services to the league, was a public agency because it received at least 25 percent of its revenues from public sources," the Herald-Leader reports. "The league receives its revenues from city membership dues, insurance premiums and loan payments. But it is unclear whether the 1993 ruling ... applies to the league."

The league wants a legal determination of its status, said Richmond Mayor Connie Lawson, who chairs the group's executive board. Another board member, Lexington Mayor Jim Newberry, said he did "not understand the league's rationale for changing its position concerning open records." The board opened its June 19 meeting at the request of the Herald-Leader.

On June 17, after the newspaper published stories about the salaries and expenses of top league executives, it asked the group for records of the group's payments to law firms. That prompted this week's letter. The league had denied an earlier request, for records of payments to the firm where Executive Director Sylvia Lovely's husband, Bernard Lovely, is a partner. (Read more)

UPDATE: Sylvia Lovely has resigned as executive director of the league.

Monday, June 22, 2009

The Ohio County school board violated the state open-meetings law by having a series of meetings, each having less than a quorum of members, to discuss extending a buyout offer for the superintendent, Attorney General Jack Conway said in opinion that was issued last week and released today.

The opinion was requested by Don Wilkins, editor of the Ohio County Times News, who alleged that the board chairman coordinated the meetings in order to get at least three of the five members to support a retirement buyout for Supt. Soretta Ralph. Wilkins had asked the board to give the weekly newspaper any records reviewed during the meetings and any written accounts of the meetings, to apologize for violating the law, and to pledge to obey it. Board Chairman Barry Geary "never did admit he broke a state law governing open meetings, but he said several times he would never do it again," Wilkins wrote in the May 28 edition.

When Wilkins appealed to the attorney general, Geary admitted speaking to two other members about the proposal. Superintendent Soretta Ralph alleged that Geary had contacted other board members to discuss how they would vote on matters to be dealt with at board meetings, and provided a statement from one member saying Geary had discussed the buyout with him by telephone.

The attorney general's decision (09-OMD-93) said there was no apparent dispute about the conversations, and cited two previous decisions holding that the law's definition of meetings -- "all gatherings of every kind" -- includes telephone conversations. However, it said it is unable to determine whether the meetings were held with the intent of violating the law. It also said it did not have the authority to order the board to produce the documents he requested.

Board attorney A.V. Conway told the attorney general's office that he had no advance knowledge of Geary's discussions with other members about the issue. Wilkins reported May 28, "The attorney said three members of a board cannot discuss something outside an open meeting and then hope to come to an open meeting and vote on that issue." He quoted Conway as saying, “Perhaps I should have had a discussion with the new board members before their first meeting.” Conway is the uncle of the attorney general.

Thursday, June 18, 2009

UPDATE: Sylvia Lovely has resigned as executive director of the league.

The Kentucky League of Cities board has agreed to open its meeting tomorrow, at which directors are expected to discuss spending and other management issues in the wake of Lexington Herald-Leaderstories about the organization that lobbies for cities and in the last 20 years has become their major insurer.

"Our board must be aware of all aspects of our business, including but not limited to compensation policies and guidelines," KLC Executive Director Sylvia Lovely, right, said in an op-ed article in the newspaper today. "And, while we hold to the belief that we are not subject to the open-meetings statutes, we invite the Herald-Leader to come to our meeting on Friday."

Herald-Leader Editor Peter Baniak told the Kentucky Open Government Blog, “We’re pleased that the Kentucky League of Cities has decided to open the meeting because what the league does is of vital public interest to cities, their employees and citizens. We hope the league will continue to be transparent.”

While the league is not covered by the state Open Meetings Act, it appears to be covered by the Open Records Act, which applies to any entity that gets at least 25 percent of the money its spends in Kentucky from state or local authority. The league fulfilled the open-records requests of Herald-Leader reporter Linda Blackford.

Lovely wrote that Blackford's articles "portray an executive with a sense of entitlement to rewards that are beyond the reach of public-sector leaders in our state. None of my compensation would probably have been written about if the paper accepted the League's position that we are in a competitive insurance business and have generated revenues during my tenure on the order of private companies. The insurance program was offered as a replacement for private insurance companies which stopped offering coverage to cities in the late 1980s. We now compete with these companies for city insurance business. The CEOs of those private companies typically earn much more than I in compensation and benefits, work no harder than I do, and do the same kind of business travel for similar purposes." (Read more)

UPDATE, June 19: The KLC board voted today to create a committee to review policies and procedures. It suspended expenditures at Lexington’s Azur Restaurant, which is one-fifth owned by Lovely's husband, Bernard Lovely; suspended travel for spouses of the executive staff; and decided to replace the sport-utility BMW that is part of Lovely's compensation.

Monday, June 15, 2009

The following opinion piece has appeared in several Kentucky newspapers.

By Mike Farrell

The governor is on the witness list. The president of the state Senate may also be called to testify. One defendant, a former head of the state Transportation Cabinet, is accused of taking bribes while providing inside information to another defendant, a road contractor. Can anyone imagine a scenario in which the public has more interest, or more right, to know what is happening as the wheels of justice turn?

This is a public corruption case. If the defendants are guilty they have defrauded the taxpayers. The indictment alleged that the scheme between former Secretary William Nighbert and contractor Leonard Lawson resulted in Lawson winning state road contracts worth $130 million.

Despite the obvious stake the taxpayers of this state have in this federal court case and despite prior federal court rulings that courts must be open, a U.S. magistrate judge held a secret hearing on important motions excluding both the public and the media. He did so without issuing proper notice or publishing his reasons.

This is neither a confused area of the law nor an insignificant one. The Supreme Court of the United States settled this issue long ago. In 1980, the justices said open courts help ensure that prosecutors and judges don’t abuse their authority and that the public’s confidence in the court system is sustained. Open courts help protect the right of the defendants to a fair trial because people are watching.

“People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing,” Chief Justice Warren Burger wrote. “When a criminal trial is conducted in the open, there is at least an opportunity both for understanding the system in general and its workings in a particular case.”

In 1986, the Supreme Court ruled that the right to a public trial extended to preliminary hearings, in part because they have traditionally been open. The court cited the 1807 preliminary hearing for former Vice President Aaron Burr on treason charges, which was moved to a larger courtroom because of the crush of observers.

U.S. District Judge Danny Reeves overlooked all of that when he said the magistrate’s decision to close a hearing in the corruption case was justified because of the amount of pre-trial publicity. It is the court’s responsibility to protect the defendants’ Sixth Amendment right to a fair trial. But the Supreme Court has never said that should be accomplished while trampling the public’s right to open courtrooms. In fact, appeals courts have outlined alternatives so that hearings and trials are conducted in the open, allowing the public and the media access.

Defense attorneys complain often during a high-profile trial like this one that stories in newspapers about the case will make it difficult to seat a jury capable of meeting the Sixth Amendment’s standard of a fair trial. In response, Judge Reeves already has moved the trial from Frankfort to Covington, where much of the population does not work for the state government and is less likely to have read every story as intently as people who live in Central Kentucky.

While unsealing the transcript of the secret hearing, after attorneys for the Courier-Journal and the Herald-Leader objected, Judge Reeves chastised the media for keeping the public informed. "Everything that happens in this case ends up in the newspapers," Reeves said, according to The Courier-Journal. "There are certain things that don't need to be disclosed."

It is more than disappointing that a federal judge with a lifetime appointment shows such little respect for the role of a free press in a democratic society. Open courts are as important for public confidence in the judiciary as fair trials. Open courts help ensure fair trials. Federal judges and magistrates should understand the lessons the Supreme Court taught nearly 30 years ago.

Secrecy, the kind that occurred in this case, undermines both the First and Sixth amendments to the Constitution. Secrecy and democracy are enemies, and every judge should understand that.

Mike Farrell is the director of the Scripps Howard First Amendment Center, and an assistant professor in the School of Journalism and Telecommunications, at the University of Kentucky.

Tuesday, June 9, 2009

The Mine Safety and Health Administration is getting heat from groups who claim the organization is withholding information that should be disclosed under the Freedom of Information Act.

OMB Watch reports that the secretive tactics of MSHA are not meeting the standards of a transparent government President Obama promised when his term began. In the past 25 years, Kentucky mine-safety attorney Tony Oppegard says, he has requested and received information from MSHA without issue. But, in October 2008, that openness stopped. Since then, Oppegard says MSHA has given him the runaround and cited several exemptions to the FOIA as reasons for withholding information, which he calls “utter rubbish.” He has denounced MSHA’s failure to disclose and reminded the agency's legal counsel of the Obama administration’s new FOIA policies.

In an article in Mine Safety and Health News, Oppegard wrote that more enforcement is needed to achieve transparency on the part of MSHA. “Miners can only hope – and trust – that when the new assistant secretary takes office, he will put a quick end to the agency’s blatant attempts to protect operators who have been charged with discrimination by miners,” he wrote. Obama has yet to name an assistant secretary of labor for coal-mine safety and health.

The subscription-only newsletter also reports that it has had difficulty extracting information from MSHA. In an editorial in the same issue, it says the agency’s secrecy is suspicious. "Regarding FOIA, MSHA is spewing red tape and accomplishing nothing, except alienating the American people – miners, their families, industry and the press." (Read more) –From The Rural Blog

Tuesday, June 2, 2009

A Rockcastle County water system can bar members from its meetings because it isn't a public agency, Attorney General Jack Conway said in an open meetings decision last week.

"Because Eastern Rockcastle Water Association, Inc. is a private, nonstock, nonprofit corporation organized under KRS Chapter 273, ERWA cannot properly be characterized as a 'public agency' within the meaning of KRS 61.805(2)," Conway said. "Accordingly, ERWA is not required to comply with provisions of the Open Meetings Act." It cited a 1978 attorney general's opinion.

The latest opinion, which has the force of law, was requested by Barbara Castleberry, who said ERWA President David Ballinger prevented her and four other customer-members of the association from attending its monthly board meetings at a county-owned facility. “A notice that limited attendance to Board Members, Board Attorney, General Manager, and Auditor was posted on the meeting room door,” Castleberry wrote. When she and the others tried to attend the meeting, “Mr. Ballinger called the Office of the Rockcastle County Sheriff, who sent two deputies to escort the group from the meeting room.”

Catstleberry argued that ERWA is referred to as "a public governmental agency" in an agreement it made with the Western Rockcastle Water Association. That was a reasonable argument, Conway said, but "none of that language is determinative on the facts presented. ... The Attorney General has long recognized that a private, nonprofit corporation is not a public agency for purposes of the Open Meetings Act."

In a footnote, Conway noted that a private, nonprofit corporation may be a public agency for purposes of the Open Records Act even if not covered by the Open Meetings Act. The Open Records Act applies to entities that get at least 25 percent of the funds they expend in the Commonwealth from state or local authorities. The decision is No. 09-OMD-81.

In an Open Records Decision, 09-ORD-079, Conway said the Cabinet for Health and Family Services did not violate the law by not providing copies of copyrighted material used by the Department for Medicaid Services in making determinations of clinical appropriateness.

Wednesday, May 13, 2009

The Kentucky attorney general has issued two more open records decisions:

1. 09-ORD-071 (Mercer County)

Decision adopting 08-ORD-044; Northpoint Training Center did not violate the Open Recods Act in declining to provide copies to requester because his inmate account contained insufficient funds to pay the reproduction charges. In accordance with KRS 61.874(1), Friend v. Rees, Ky. App. 696 S.W. 2d 125 (1985), and prior decisions of this office, the denial is affirmed.

2. 09-ORD-072 (Campbell County)

Decision adopting 08-ORD-6; because records in the custody of the circuit court clerks are properly characterized as court records, which are not governed by the Open Records Act, rather than public records within the meaning of KRS 61.870(2), the attorney general has long recognized that circuit court clerks are not subject to the provisions of the Open Records Act. Consequently, the Campbell Circuit Court Clerk did not violate the act by failing to respond upon receipt of the request as would otherwise be required by KRS 61.880(1).

Full texts of the decisions can be found via the Links of Interest below.

Tuesday, May 12, 2009

First Amendment lawyer Jon Fleischaker, architect of Kentucky's open records law, says he's unworried by a federal appeals court ruling that the Texas Open Meetings law could be unconstitutional.

"Perhaps I'm foolish," Fleischaker said in an email, "but I am not bothered. Efforts to use this case will spread, but I do not think the court's reasoning or the result is logical or will be adopted."

A panel of The Fifth Circuit U.S. Court of Appeals in New Orleans ruled Monday in Rangra v. Brown that elected officials have a First Amendment right to talk to each other in private despite the Texas Open Meetings law. It said the Texas law would have to pass stringent constitutional muster and ordered the original trial court to review the case, which involved two city council members exchanging emails on whether to call a council meeting on a public contract issue. The lower court had said the email exchange violated the state law.

The Reporter's Committee for Freedom of the Press has urged the full appeals court to rehear the case, fearing the decision could bring constitutional challenges to open meetings laws across the country

"If this decision is allowed to stand, local elected officials throughout the Fifth Circuit could violate the open meetings laws in their states with impunity," said Lucy A. Dalglish, executive director of the Reporters Committee. "Such a scenario would make a mockery of open government in those states."

Monday, April 27, 2009

The following Open Records Decisions were issued by the Office of the Attorney General on April 24, 2009:1. 09-ORD-067 (Jefferson County)Jefferson County Division of Probation and Parole properly denied request for information obtained by parole officer, and investigative reports generated by her in discharging her official duties, on the basis of KRS 439.510, incorporated into the Open Records Act by operation of KRS 61.878(1)(l). Although the division admittedly violated KRS 197.025(7) in failing to issue a written response within five business days, the agency's ultimate disposition of the request was entirely correct.

2. 09-ORD-068 (Marion County)Marion Adjustment Center properly relied upon KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), in denying inmate's request as the record(s) being sought do not contain a specific reference to him.

3. 09-ORD-069 (Mercer County)Northpoint Training Center did not violate the Open Records Act in declining to provide copies to requester without prepayment of reproduction charges. In accordance with KRS 61.874(1) and applicable precedent, the denial is affirmed.

4. 09-ORD-070 (Oldham County)Roederer Correctional Complex did not violate Open Records Act in failing to respond to a request that was not successfully transmitted to it, and otherwise properly disposed of issues on appeal by furnishing requester with the only existing record responsive to his request.

Monday, April 20, 2009

The following open records decisions were issued by the Office of the Attorney General on April 14-17:

1. 09-ORD-063 (Franklin County)Kentucky State Police properly relied on KRS 439.510, incorporated into the Open Records Act by KRS 61.878(1)(l), in denying a request for sex offender registration forms.

2. 09-ORD-064 (Wayne County)Monticello Banking Co. is not a public agency for open records purposes, and its records are not subject to the Open Records Act. It therefore did not violate the act by denying a request for a decedent's loan records.

3. 09-ORD-065 (Franklin County)The Kentucky Labor Cabinet properly denied access to requested file as the subject investigation is not complete nor has the agency taken any final action. Until such time as the Cabinet adopts the notes, drafts, and correspondence with private individuals, or the recommendations and memoranda in which opinions are expressed or policies formulated as the basis of a final action, those documents retain their preliminary status under KRS 61.878(1)(i) and (j), respectively. Cabinet also properly declined, alternatively, to honor "standing request."

4. 09-ORD-066 (Jefferson County)University of Louisville did not violate Open Records Act in failing to respond to requests that were unsuccessfully transmitted to a nonexistent email account. Because requests did not reach the university, no error can be assigned to it under KRS 61.880(1).

Monday, April 13, 2009

The following open records decisions were issued by the Office of the Attorney General on April 7:

1. 09-ORD-061 (Floyd County)Decision adopting 08-ORD-084 and holding that private ambulance service is not a public agency for open records purposes even though it derives some state funding from Medicaid reimbursement.

2. 09-ORD-062 (Kenton County)Decision adopting 01-ORD-136 and 08-ORD-171; Elsmere Police Department subverted the intent of the Open Records Act within the meaning of KRS 61.880(4) by charging 15 cents per page for copies of public records. Unless the agency can substantiate that its actual cost of reproduction is greater than 10 cents per page, imposition of any fee in excess of that amount is not authorized under Friend v. Rees, Ky. App., 696 S.W.2d 325 (1985) and prior decisions of this office.

Monday, April 6, 2009

The following opinion and open records/meetings decisions were issued by the Office of the Attorney General March 31-April 3:

1. OAG 09-003In accordance with Section 55 of the Constitution of Kentucky, the effective date of legislation passed by the 2009 Regular Session of the Kentucky General Assembly, except for general appropriation measures and those containing emergency or delayed effective date provisions, is the first moment of Thursday, June 25, 2009, since 90 full days will then have passed after final adjournment on March 26, 2009.

2. 09-OMD-056 (Warren County)Three employees of Bowling Green Municipal Utilities acting within the scope of their employment were not constituted as a “committee” that was “established, created, and controlled” by a public agency, the Open Meetings Act does not apply. KRS 61.805(2)(g) does not apply.

3. 09-ORD-057 (Mercer County)Northpoint Training Center did not violate Open Records Act by not providing copies of policies and procedures to an inmate when the documents did not contain a specific reference to him, as provided in KRS 197.025A(2), or addressed security and control of inmates and facilities, as provided in KRS 197.025(6).

4. 09-ORD-058 (Franklin County)Education and Workforce Development Cabinet violated KRS 61.880(1) in failing to issue a timely written response to open records request. Cabinet failed to meet its statutory burden of proof relative to invocation of KRS 61.872(6) and 3 of 7 records requests. Cabinet honored two of the requests and properly denied the remaining requests.

5. 09-ORD-059 (Franklin County)Cabinet for Health and Family Services cannot produce nonexistent records for inspection or copying nor does it have to "prove a negative" under Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.2d 333, 340-341 (2005). In accordance with 09-ORD-022, agency's denial as to six categories of records withheld on the basis of 45 CFR § 2.3, incorporated into the Act by operation of KRS 61.878(1)(k), is affirmed. CHFS properly redacted information from certain documents per KRS 61.878(1)(a) and KRS 620.050(11). With exception of procedural violations, agency complied with the Act.

6. 09-ORD-060 (Franklin County)The Office of the Governor violated KRS 61.880(1) in failing to respond to three separate requests for records relating to an efficiency study. Records belatedly disclosed to requester related to a spending analysis report, and Governor's Office maintained that no additional responsive records existed because no efficiency study was conducted.

Tuesday, March 31, 2009

The following Open Records Decisions were issued by the Office of the Attorney General March 23-26:

1. 09-ORD-052 (Woodford County)Kentucky Community and Technical College System properly withheld copies of exams containing questions that might be reused, as well as interview notes made during investigation of a student grievance, since the notes had not been adopted as the basis of final agency action. The notes, however, might be accessible under FERPA.

2. 09-ORD-053 (Franklin County)Department of Public Advocacy did not substantively violate the Open Records Act when it did not possess a copy of the requested toxicology report.

3. 09-ORD-054 (Harlan County)City of Cumberland subverted the intent of the Open Records Act by disclaiming custody and control of employee timesheets while those timesheets were "boxed up for the auditor," and, consequently, failing to afford requester timely access to those records.

4. 09-ORD-055 (Woodford County)Having reviewed the legal invoices in dispute, this office finds that Midway was justified in redacting information withheld on the basis of the attorney-client privilege codified at KRE 503, incorporated into the Act by operation of KRS 61.878(1)(l), as the remaining material reflects the general nature of the services provided and the associated fees. The city is not required to produce nonexistent records or "prove a negative" in order to refute a claim that certain records exist nor is City required to comply with a request for information, or compile a list or create a record for the purpose of satisfying a request.

Friday, March 27, 2009

The 2009 session of the Kentucky legislature did “very little damage” on issues of interest to the state’s newspapers and broadcast media, according to David Thompson, executive director of the Kentucky Press Association.

Thompson will report to KPA members that the General Assembly passed one bill that KPA lobbied against during the session that concludes March 27. That bill imposes a 6 percent sales tax on website subscriptions. However, that will affect only about 10 percent of KPA members, he said, because most newspaper websites are free. Gov. Steve Beshear has signed the legislation.

“You win some, lose some and some get shut out,” Thompson said in an interview with the Kentucky Open Government Blog.

He noted that several bills that both KPA and Kentucky Broadcasters Association were backing did not get passed this session, but most will be brought up again in 2010. That includes a bill to set access rules for journalists at polling sites on election day. Though journalists have a constitutional right to such access, Thompson said, under current vague privacy laws election officials sometimes block them from the voting room or prevent pictures from being taken. The bill failed not because of opposition, but because of time constraints, Thompson said.

One bill that the news media organizations opposed was successfully blocked – a proposal to forbid broadcast of 911 call recordings. “But it will be back again next year and every year,” Thompson said. The bill’s sponsor, Sen. John Schickel, has also said he will keep trying.

Thursday, March 26, 2009

U.S. Attorney General Eric Holder has ordered all federal agencies to be more open in the release of information, reversing Bush-era policies and following the directive of President Barack Obama.

Holder issued a memo to agency heads citing the administration’s “commitment to open government,” and telling them to administer the Freedom of Information Act with a “clear presumption: In the face of doubt, openness prevails.”

“An agency should not withhold information simply because it may do so legally,” Holder wrote. “I strongly encourage agencies to make discretionary disclosures of information.” He added that if an agency decides it cannot make full disclosure of requested information, it must consider making partial disclosure.

Holder rescinded rules set by the Bush administration that arguably encouraged the withholding of information. He substituted rules against withholding unless there is foreseeable harm or disclosure is prohibited by law. He also ordered that the new rules be applied to existing FOIA requests, of which there is a backlog.

"By restoring the presumption of disclosure that is at the heart of the Freedom of Information Act, we are making a critical change that will restore the public's ability to access information in a timely manner,” Holder said. “The American people have the right to information about their government's activities, and these new guidelines will ensure they are able to obtain that information under principles of openness and transparency."

The memo was issued during Sunshine Week, the annual celebration of open government and freedom of information laws. For the full text, click here.